June 22, 2012

Appeals Court Revives Former Prosecutor's Privacy Suit Against DOJ

A federal appeals court in Washington today revived a suit by a former federal prosecutor who claims an unidentified U.S. Justice Department official unlawfully disclosed information about an internal, confidential ethics investigation.

Chief Judge Royce Lamberth of U.S. District Court for the District of Columbia in March 2011 shut down the suit, saying that Convertino cannot identify the DOJ leaker. Lamberth refused to allow the continuation of the case, which he called a "quest to unmask the leaker" of private information.

Today, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit revived the suit. The allegations flow from a DOJ investigation of Convertino for alleged prosecutorial misconduct. The appellate panel said "we believe that Convertino submitted ample evidence to suggest that additional discovery could reveal the source's identity."

The appeals court said a judge in the U.S. District Court for the Eastern District of Michigan could decide to force discovery from the Detroit Free Press, which published a front-page piece about Convertino in January 2004.

Convertino was unsuccessfully prosecuted on charges stemming from allegations he violated rules in the prosecution of a terrorism-related defendant. Convertino's alleged unethical behavior was the root of the DOJ internal probe.

Convertino, represented by Stephen Kohn, claims DOJ leaked confidential information about that probe to a reporter. The reporter has invoked his Fifth Amendment right in refusing to divulge the name of the source.

Writing for the D.C. Circuit panel, Judge Karen LeCraft Henderson said "it is reasonably likely" that a Free Press editor may have information about the confidential source. The newspaper's policy, Henderson said, permits the use of anonymous sources only if an editor approves.

The DOJ inspector general's office conducted an investigation of the leak but did not find it. The internal investigation focused on about 30 DOJ employees who had access to the confidential information that was referenced in the newspaper article.